Law
5:00 pm
Mon November 26, 2012

Who's A Supervisor When It Comes To Harassment?

Originally published on Mon November 26, 2012 8:31 pm

The U.S. Supreme Court heard arguments Monday in a case that asks the justices to define who is a "supervisor" when the issue is harassment in the workplace. The definition is important because employers are automatically liable for damages in most cases in which a supervisor harasses a subordinate.

At the center of the case were allegations of racial harassment brought by Maetta Vance, a kitchen assistant at Ball State University in Muncie, Ind. For many of her 18 years at Ball State, Vance was the only African-American in the catering department, but it wasn't until her 16th year working there that she filed racial harassment charges.

The federal appeals court for the 7th Circuit, in the Midwest, threw the case out because the alleged harasser did not have the power to hire, fire or discipline anyone. The 7th Circuit's definition of a supervisor is narrower than that used by some other appeals courts and by the Equal Employment Opportunity Commission, the federal agency charged with enforcing employment discrimination laws. So, after losing in the 7th Circuit, Vance appealed her case to the Supreme Court.

Who Qualifies?

At Monday's argument, Vance's lawyer, Daniel Ortiz, was first up to the lectern, telling the court that the proper definition of a supervisor is someone who directs another employee's daily activities. Chief Justice John Roberts interjected with a hypothetical: Suppose five people work together, and the employer has a rule that the senior employee gets to pick the music that's going to play all day long. The senior employee knows that one of the other employees doesn't like country music, so he tells her, "If you don't date me, it's going to be country music all day long." Does that make the senior employee the supervisor?

Lawyer Ortiz replied that that action might not qualify as severe enough.

That prompted Justice Antonin Scalia to change the hypothetical: Suppose the music is hard rock instead of country.

With a straight face, Ortiz said that "from an objective, reasonable employee's standpoint," the music would not impair workplace performance, but that cases must be judged on an individual basis.

"Exactly," said Roberts, who then noted that the 7th Circuit's definition of a supervisor establishes a clear rule that would avoid the need for courts to take on case-by-case analyses.

Justice Samuel Alito turned the discussion to the facts of Vance's case, asking what the most unpleasant task was that the alleged harasser could have assigned to Vance. "Chopping onions all day?" he asked.

Although Ortiz said chopping onions may well be the worst task assigned, Justice Ruth Bader Ginsburg was quick to point out that the record in the case did not show that the alleged harasser had any authority to make that kind of assignment. Rather, the kitchen prep sheets that assigned tasks were made up by the chef and department head.

Justice Elena Kagan then illustrated for everyone in the courtroom how the 7th Circuit test could work in practice. Observing that the Vance case involves a university, she posed a hypothetical about a professor who has a secretary: "The professor subjects that secretary to living hell ... on the basis of sex, but the professor has no authority to fire the secretary."

Professors don't have that authority, noted Kagan, who served as dean of Harvard Law School for five years. The secretary is fired by the head of secretarial services. So how would the 7th Circuit's rule apply in such a case?

The answer she got was that the professor would not qualify as a supervisor.

Another Approach

In most Supreme Court cases, one side is defending the lower court decision and the other side says the lower court was wrong. But not in Monday's case. Ball State agrees that the 7th Circuit hiring and firing definition is wrong, but lawyer Gregory Garre, representing the university, told the justices that the alternative suggested by Vance and the EEOC is too broad.

"What sort of guidance would the opinion you're suggesting offer?" Justice Alito asked.

Garre suggested something in between the 7th Circuit's and Vance's proposed standard. Individuals who do lack the power to hire and fire can still be supervisors, Garre said. But "merely having some occasional or marginal authority to lead or direct is not sufficient" to qualify an individual as a supervisor.

Roberts challenged Garre's case-by-case approach, apparently preferring the 7th Circuit's definition of a supervisor as being only someone with the power to hire and fire. The chief justice conceded that the rule would likely impose "harsh results" in some cases but seemed to suggest that a clear rule is still better than a case-by-case approach.

The other justices seemed less enamored with the rule but were less clear about where they were headed in making a final decision about how to define who is a supervisor.

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Transcript

MELISSA BLOCK, HOST:

The Supreme Court heard arguments today in a case that asks, when it comes to harassment in the workplace, who is a supervisor? The definition is important. As NPR's Nina Totenberg reports, employers are automatically liable for damages, in most cases, where a supervisor harasses a subordinate.

NINA TOTENBERG, BYLINE: At the center of today's case were allegations of racial harassment brought by Maetta Vance, an African-American kitchen assistant at Ball State University in Indiana. The Federal Appeals court for the 7th Circuit in the Midwest threw the case out because the alleged harasser did not have the power to hire, fire or discipline anyone. That definition of a supervisor is narrower than the definition used by most appeals courts or by the EEOC, the federal agency charged with enforcing employment discrimination laws. And so Vance appealed to the Supreme Court, represented by University of Virginia law professor Dan Ortiz.

DAN ORTIZ: There are lots of situations where people have power over other employees when they don't have the power to fire them.

TOTENBERG: Ball State, represented by lawyer Gregory Garre, maintains that Vance's definition is too expansive, so broad that...

GREGORY GARRE: Thousands, if not millions of workers across the country would automatically being deemed supervisors, when in practice, no one would have considered those people supervisors.

TOTENBERG: Inside the court today, Vance's lawyer was first up, telling the court that the proper definition of a supervisor is someone who directs another employee's daily activities regardless of the power to hire and fire. Chief Justice Roberts interjected: Suppose five people work together, and the employer has a rule that the senior employee gets to pick the music that's going to play all day. And the senior employee knows that one of the other employees doesn't like country music, so he tells her, if you don't date me, it's going to be country music all day long. So does that make the senior employee the supervisor?

Lawyer Ortiz replied that action might not qualify as severe enough. Justice Scalia: OK, let's say it's hard rock instead. Answer: I don't think from an objective reasonable employee's standpoint, the music would impair performance in the workplace. But each case has to be judged individually. Chief Justice Roberts: Exactly. And I would have thought the benefit of the 7th Circuit's test is that it establishes a clear rule and avoids a case-by-case analysis.

Justice Alito: What was the most unpleasant thing the alleged harasser could have assigned Vance to do? Chopping onions all day? Answer: Yes, that might have been. Justice Ginsburg: But the record shows she didn't have the authority to make that kind of an assignment. The kitchen prep sheets assigning tasks were made up by the chef and the department chef. Justice Kagan asked how the 7th Circuit standard works in practice. This case involves a university setting, she observed.

So let's say there's a professor who has a secretary, and the professor subjects the secretary to living hell on the basis of sex. But the professor has absolutely no authority to fire the secretary. Professors don't have the authority, said Kagan, who served as dean of Harvard Law School for five years. The secretary is fired by the head of secretarial services. So what does the 7th Circuit say about that? Answer: The professor would not qualify as a supervisor.

Now, in most Supreme Court cases, one side is depending the lower court decision, and the other side says the lower court was wrong. Not so in today's case. Ball State agrees that the 7th Circuit hiring and firing definition of a supervisor is wrong. But lawyer Garre, representing the university, told the justices the alternative suggested by Vance and the EEOC is too broad. Justice Alito: What sort of guidance would the opinion you're suggesting offer? Answer: You can be a supervisor without the ability to hire and fire but merely having some occasional or marginal authority to lead or direct is not sufficient to qualify an individual as a supervisor.

Chief Justice Roberts challenged Garre's case-by-case approach, apparently preferring the 7th Circuit's definition of a supervisor as only someone with the power to hire and fire. He conceded that the rule would likely impose, quote, "harsh results" in some cases but seem to suggest that a clear rule is still preferable to a case-by-case approach. The other justices seemed less enamored with the rule but were less clear about where they were heading. Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF MUSIC)

ROBERT SIEGEL, HOST:

This is ALL THINGS CONSIDERED from NPR News. Transcript provided by NPR, Copyright NPR.